Joe Hand Promotions, Inc. v. Dugout, LLC, The

Filing 27

ORDER denying 25 First Motion to Alter Judgment or Amend Judgment by Judge Christine M. Arguello on 11/12/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00821-CMA-CBS
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
THE DUGOUT, LLC,
Defendant.

ORDER DENYING PLAINTIFF’S FIRST MOTION
TO ALTER JUDGMENT OR AMEND JUDGMENT

This matter is before the Court on Plaintiff Joe Hand Promotions, Inc.’s First
Motion to Alter Judgment or Amend Judgment (Doc. # 25), filed on October 21, 2013.
In its motion, Plaintiff requests relief from the Court’s Order granting in part and denying
in part Defendant’s Motion for Judgment on the Pleadings, in which the Court
determined that the statute of limitations barred Plaintiff’s federal claims and declined
to exercise supplemental jurisdiction over the remaining state claim. (Doc. # 22.)
“The Federal Rules of Civil Procedure do not recognize a ‘motion to reconsider.’”
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). A litigant who is
subject to an adverse judgment, and who seeks reconsideration by the district court
of that adverse judgment, may “file either a motion to alter or amend the judgment
pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment pursuant
to Fed. R. Civ. P. 60(b).” Id. Whether a reconsideration request should be reviewed

under Rule 59 or 60 “depends upon the reasons expressed by the movant.”
Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d
1194, 1200 (10th Cir. 2011). Where, as here, the motion “involves ‘reconsideration of
matters properly encompassed in a decision on the merits,’” a court considers the
motion under Rule 59(e). Phelps v. Hamilton, 122 F.3d 1309, 1323-24 (10th Cir. 1997).
(quoting Martinez v. Sullivan, 874 F.2d 751, 753 (10th Cir. 1989)); see also Jennings v.
Rivers, 394 F.3d 850, 855 (10th Cir. 2005). In other words, if the reconsideration
motion seeks to alter the district court's substantive ruling, then it should be considered
a Rule 59 motion and be subject to Rule 59’s constraints. See Phelps, 122 F.3d at
1324. Plaintiff met the time limitation under Rule 59 by filing the motion within 28 days
from the entry of judgment. 1 See Van Skiver 952 F.2d at 1243.
The three major grounds that justify reconsideration are: (1) an intervening
change in controlling law, (2) the availability of new evidence, and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000); see also Phelps, 122 F.3d at 1324. A motion for
reconsideration is inappropriate to re-argue an issue previously addressed by the court
when the motion merely advances new arguments or supporting facts which were
available at the time of the original application. Paraclete, 204 F.3d at 1012 (motion to
reconsider is not a proper vehicle through which to “revisit issues already addressed or
advance arguments that could have been raised in prior briefing.”) However, a motion
1

Neither party challenges the applicability of this rule on the grounds that the Court’s order was
not a judgment. However, the Court notes that other courts in this Circuit have applied Fed. R.
Civ. P. 59(e) to remand orders. See, e.g., Aetna U.S. Healthcare, Inc. v. Hoechst
Aktiengesellschaft, 67 F. Supp. 2d 1242, 1248 (D. Kan. 1999).
2

to alter or amend that reiterates issues originally raised in the application and that seeks
to challenge the legal correctness of the court's judgment by arguing that the district
court misapplied the law or misunderstood the litigant's position is correctly asserted
pursuant to Fed. R. Civ. P. 59(e). See Van Skiver, 952 F.2d at 1244.
In the instant case, Plaintiff argues that the Court “committed a manifest error of
law in holding that the Colorado Cable Piracy Act applies to satellite claims under 47
U.S.C. § 605.” In so arguing, Plaintiff asserts that the Court should not have borrowed
the statute of limitations from the Colorado Cable Piracy Act, which explicitly exempts
satellite dishes. (Doc. # 25, at 2-3.) Plaintiff made this argument in its response to the
underlying motion (Doc. # 18 at 4-5), and the Court rejected the argument in its Order
(Doc. # 22, at 4 n.1). 2
Nonetheless, once again the Court will address the substance of Plaintiff’s
argument. 3 Section 605 deals with the receipt, transmission, assistance in transmitting
“any interstate or foreign communication by wire or radio . . . .” 47 U.S.C. § 605(a)
(emphasis added). Although one district court from the Tenth Circuit has interpreted
47 U.S.C. § 605 to apply only to theft of radio signals, see Kans. City Cable Partners
ex rel. Time Warner Entm’t Co., L.P., v. Espy, 250 F. Supp. 2d 1296 (D. Kans. 2003),
the Tenth Circuit has not ruled on the application of 47 U.S.C. § 605. The Court is
persuaded by the Second Circuit’s holding that Section 605 applies to the unauthorized
2

The Court also notes that Plaintiff’s motion does not comply with D.C.COLO.LCivR 7.1, which
requires counsel for the moving party to confer or make reasonable good-faith efforts to confer
with opposing counsel to resolve the disputed matter.
3

Plaintiff essentially concedes that the Colorado Cable Piracy Act is the most closely analogous
statute to 47 U.S.C. § 553. (Doc. # 25 at 2.)
3

use of both cable and radio transmissions—such as satellite programming. See Int’l
Cablevision, Inc. v. Sykes, 75 F.3d 123, 133 (2d Cir. 1996). Thus, the Court is not
persuaded that 47 U.S.C. § 605 solely applies to unauthorized use of radio signals,
such as satellite programming. Therefore, because 47 U.S.C. § 605 applies to the
unauthorized use of cable and radio transmissions, the Colorado Cable Piracy Statute
is the most closely analogous statute and provides the statute of limitations for Section
605 claims.
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s First Motion
to Alter Judgment or Amend Judgment (Doc. # 25) is DENIED.
DATED: November 12, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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